Amanda Hollis-Brusky: When our readers think about law and courts in America, they likely think about the U.S. Supreme Court and the nine justices who occupy the highest court in the land. Why should our readers care about state courts?
James L. Gibson: The state high courts are incredibly important and powerful policymaking institutions. Despite the attention given to SCOTUS, these courts have the final say on a vast array of issues affecting people’s day-to-day lives. For example, can a state force us to wear — or not wear — a mask to protect against covid-19? Do I have a right to have an abortion? Are voter suppression schemes constitutional? Can I be fired from my job for being gay? Will Medicaid be expanded in my state to cover more poor people? State supreme courts decide such issues.
AHB: You mentioned abortion. Many Americans are reeling from the Supreme Court’s decision not to intervene to stop Texas’s new abortion law, S.B. 8, which prevents women from accessing their constitutional right to an abortion after six weeks of pregnancy. What role have and will state courts play in deciding whether women have access to their abortion rights?
Michael J. Nelson: The issue of abortion rights is, of course, much broader than Texas. If SCOTUS takes away the constitutional right to an abortion — which seems a likely first step — then specifying the conditions under which an abortion can be had, if any, reverts to the states. The ultimate decisions will most likely be made by these state supreme courts. The “right” to an abortion will depend on the composition of the high court where you live.
AHB: The first time I really remember paying attention to state courts was in the 2000 presidential election, when state courts in Florida were issuing all sorts of rulings about which ballots could be counted and which needed to be thrown out. Will state courts play a role in the upcoming elections?
JG: Almost certainly. And there is a pretty good chance that these state high courts will, in effect, decide the outcome of the 2024 presidential election and perhaps the 2022 midterm elections as well. Since so much election law is grounded in state, not federal, law, state supreme courts, not federal courts, will determine the constitutionality of voter suppression schemes, gerrymandering attempts and challenges to state election certification efforts. That will consequently influence (if not determine) who will live in the White House.
AHB: My students are almost always shocked to learn that the majority of states elect their state court judges and sometimes these elections are partisan — that is, judges run as Democrats or Republicans. How does this affect the way these state courts operate?
MN: When we first learn about courts in elementary school, we’re taught that because courts are removed from political pressures, they protect the rights of minorities against the majority. But this is not true of elected courts. Looking more broadly, we find that most state supreme courts are actually majoritarian institutions, politically responsive to the majority political party in their states. And governors and legislatures fight hard to keep it that way. Like the pressures that Justice Stephen Breyer is experiencing right now to retire under a Democratic president, many state high court justices appear to have been convinced to engage in strategic resignations.
For example, despite the fact that Minnesota formally elects its justices, the vast majority were first seated on the high court via gubernatorial appointments to fill vacant judgeships. For state parties, finding and supporting strong candidates to keep or grow their party’s presence on the bench is as important as finding strong gubernatorial or legislative candidates. These courts are simply too important to allow them to be “independent.”
AHB: Your new book primarily evaluates the extent to which state courts have either promoted equality or perpetuated inequality throughout a variety of policy domains. What are your main findings? Are all state courts the same?
JG: Not at all. When it comes to rulings on political, legal, economic and social inequality, these courts’ records almost couldn’t be more varied. For example, the Texas Supreme Court ruled against equality in 72 percent of the equality-relevant cases that it decided between 1990 and 2015, while the Arizona Supreme Court ruled in favor of equality in 72 percent of its cases. What the law is on many important legal issues depends mightily on where you live.
AHB: Does partisanship — that is, whether Democrats or Republicans appoint or elect the majority of state court judges — explain all the variation in state court rulings? Are there other factors in play here?
MN: It can’t explain all the variation, but it’s a crucial factor. Liberal judges tend to vote in favor of equality — for example, providing equal state funding for poor and rich school districts — whereas conservative judges tend to vote against equality. Most important, however, are the judges’ allegiances and acquiescence to the governing coalition in their state. State supreme courts are rarely independent bodies; more typically, they do the bidding of those responsible for getting them on the high bench in the first place.